Overrepresentation of Indigenous People in the Canadian Criminal Justice System: Causes and Responses

Causes of Overrepresentation

Why are Indigenous people so vastly overrepresented as offenders and victims? RCAP identified three viable explanations, each of which has currency in government thinking and academic literature: colonialism; socio-economic marginalization; and culture clash. Systemic discrimination against Indigenous people in the criminal justice system is also a serious problem. These factors have acted together over many years. They are addressed below.

Colonialism

RCAP’s most fundamental explanation for Indigenous overrepresentation in the criminal justice system is colonialism. According to RCAP and others (Levy and Young, 2011; Commission on First Nations and Métis Peoples and Justice Reform, 2007; Crosby and Monaghan, 2012; Friedland, 2009; Manzano-Munguia, 2011), the colonial experience for Indigenous peoples from the time of early French and British contact has been characterized by attempts by the colonial powers to control Indigenous lands and natural resources. Many mechanisms of colonial control have been imposed, including violent relocation to reserves and other designated settlements and restrictive legislation, most commonly through the Indian Act.

The Indian Act was (and many would say, continues to be) a discriminatory piece of legislation. Early years saw many repressive measures enacted through a series of amendments, including: restrictions on the use of mechanized farm implements by Indigenous farmers; the banning of ceremonial activities such as the potlatch in British Columbia and the sundance on the prairies; involuntary enfranchisement (loss of Indian status) if a man attained a certain level of education; prevention of Indigenous groups or communities from hiring a lawyer to represent their interests before the federal government; and the threat of fines for lawyers who represented Indigenous groups or communities (see Coates, 2008). Other complications continue, including unsuccessful attempts to revise certain parts of the legislation that affect many First Nations individuals and families; for example, restrictions on the granting of Indian status, which especially impacts Indigenous women and their children (Palmater, 2011).

Further examples of colonialism in the present are seen in government’s reluctance to honour the conditions set out in treaties between Indigenous peoples and the federal government, as emphasized by RCAP (1996). Many specific claims – claims to land and other promised benefits – remain unresolved by the federal government. This is a concern to many First Nations and regional First Nation governments and organizations. It is explicitly identified as an ongoing problem with the federal government and is a contributor to the ongoing marginalization of Indigenous peoples.

According to RCAP, “[t]he relationship of colonialism provides an overarching conceptual and historical link in understanding much of what has happened to Aboriginal peoples” (1996: 47). Colonialism is a historical relationship characterized by “particular and distinctive historical and political processes that have made Aboriginal people poor beyond poverty” (ibid.: 46). A relatively early explanation of the links between colonialism and overrepresentation was contained in a 1988 report prepared by Michael Jackson for the Canadian Bar Association. In that report, Jackson spoke of a colonial relationship whereby cultural alienation, territorial dispossession, and socio-economic marginalization became increasingly pronounced among Indigenous peoples. According to Jackson, “[t]his process of dispossession and marginalization has carried with it enormous costs of which crime and alcoholism are but two items on a long list” (1988: 218). In other words, the impacts of colonialism have contributed in significant ways to the overrepresentation of Indigenous people in the criminal justice system.

Some authors (e.g., Proulx, 2003) refer to colonialism and post-colonialism as part of the same process. This may be most glaringly true with regard to residential schools, which were in place for over one hundred years. In the words of the TRC,

The government-funded, church-run schools were located across Canada and established with the purpose to eliminate parental involvement in the spiritual, cultural and intellectual development of Aboriginal children. The last residential schools closed in the mid-1990s…. During this chapter in Canadian history, more than 150,000 First Nations, Métis, and Inuit children were forced to attend these schools some of which were hundreds of miles from their home. The cumulative impact of residential schools is a legacy of unresolved trauma passed from generation to generation and has had a profound effect on the relationship between Aboriginal peoples and other Canadians (TRC, 2015b; emphasis added. ).

It is almost impossible to estimate the extent of the negative intergenerational impacts of the residential school experience. The results have been complex and tragic, including disproportionately high rates of physical and mental health problems, alcohol and drug abuse, cognitive impairment, interpersonal violence, and suicide. These factors all contribute to the overrepresentation of Indigenous people in the criminal justice system.

Indigenous people often say they lost their parenting skills through the residential school experience (as was likely intended by authorities) and that this loss has been passed down to their children and grandchildren (Clark, 2007; TRC, 2015a). The federal Correctional Investigator noted serious underlying problems experienced by Indigenous inmates, problems which could be directly or indirectly related to the residential school experience and family breakdown. He referred to Correctional Service of Canada research that found, among other negative factors, that half of the Indigenous offenders involved in the Aboriginal Offender Substance Abuse Program “had been in the care of the child welfare system – 71% had spent time in foster care and 39% in a group home” (OCI, 2014: 43).

Both RCAP and the TRC have argued that colonialism in its various forms, whether residential schools, removal of people from their traditional lands, the dictates of the Indian Act, or the failure of government to honour the treaties, has had and continues to have profound negative impacts on Indigenous people. These impacts are manifested in many ways, including crime and victimization. In the words of RCAP Commissioners,

.. [w]e are of the opinion that locating the root causes of Aboriginal crime in the history of colonialism, and understanding its continuing effects, points unambiguously to the critical need for a new relationship that rejects each and every assumption underlying colonial relations between Aboriginal peoples and non-Aboriginal society (RCAP, 1996: 52).

In this quote and throughout their report, the RCAP Commissioners make direct links between the effects of colonialism and criminal behaviour by Indigenous people. They also connect colonialism directly to systemic discrimination and, as described below, to socio-economic marginalization and culture clash.

Socio-economic Marginalization

It is clear that colonialism in its various forms has had long-term negative impacts on Indigenous people. Also bearing directly on offending, victimization and inequitable treatment of Indigenous people in the justice system is socio-economic marginalization which, according to RCAP, can be seen as a direct result of colonialism, past and present (RCAP, 1996). Even a basic investigation leaves no doubt that Indigenous individuals and entire communities are marginalized in Canada. The average income in 2015 for Canada’s total non-Indigenous population was $46,449, while the average income for the total Indigenous population was $36,748 (Statistics Canada, 2016b). As well, Indigenous employment was significantly lower than that for the non-Indigenous population for the same period: 81.6 percent for the non-Indigenous population compared to 65.8 percent for the total Indigenous population (ibid.). Employment in remote and isolated Indigenous communities is significantly lower than overall Indigenous employment numbers, which include urban Indigenous people who are more likely to have jobs (ibid.). Footnote 12

Compounding the problem of relatively low income and high employment is a host of other unacceptable social and living conditions facing Indigenous people, especially those living in remote and isolated areas. Many authors, agencies, and inquiries have documented seriously substandard levels of housing, education, and health care for Indigenous communities. In 2016, the proportion of Indigenous dwellings requiring major repairs was 19 percent, compared to 6 percent for the non-Indigenous population. While 29 percent of the non-Indigenous population between 25 and 64 years of age had attained a university degree by 2016, 11 percent of Indigenous people had achieved this level of education (Statistics Canada, 2016b).Footnote 13

Health is another serious issue. The high and increasing rate of tuberculosis (TB) currently seen in Indigenous communities is a significant indicator of the effects of socio-economic marginalization, combining poverty, poor housing, and poor health care. According to Health Canada, “[s]tudies have shown that First Nation people are more at risk than other Canadians of getting TB infection. Some of the root causes are related to poor socio-economic conditions where they live” (Health Canada, 2010). A further indicator of social and economic marginality is the high rate of suicide among Indigenous people, especially youth. A 2017 parliamentary report found that suicide rates among Indigenous persons, especially youth (both female and male) were as much as 40 times higher than among the non-Indigenous population. Moreover, while the suicide rate for the Canadian population has declined, the rates among Indigenous people have increased over the past three decades (Standing Committee on Indigenous and Northern Affairs, 2017).

Social and economic marginalization, which includes the problems noted above, contributes to the overrepresentation of Indigenous people in the criminal justice system. According to the RCAP,

Cast as a structural problem of social and economic marginality, the argument is that Aboriginal people are disproportionately impoverished and belong to a social underclass, and that their over-representation in the criminal justice system is a particular example of the established correlation between social and economic deprivation and criminality.... There is no doubt in our minds that economic and social deprivation is a major underlying cause of disproportionately high rates of criminality among Aboriginal people (1996: 42).

Regrettably, we have seen little improvement in the negative effects of socio-economic marginalization since the RCAP report.

Systemic Discrimination

Indigenous overrepresentation exists throughout the justice system. The Supreme Court of Canada noted the following in R. v. Gladue:

Not surprisingly, the excessive imprisonment of aboriginal people is only the tip of the iceberg insofar as the estrangement of the aboriginal peoples from the Canadian criminal justice system is concerned. Aboriginal people are overrepresented in virtually all aspects of the system. As this Court recently noted in R. v. Williams, [1998] 1 S.C.R. 1128, at para. 58, there is widespread bias against aboriginal people within Canada, and “[t]here is evidence that this widespread racism has translated into systemic discrimination in the criminal justice system”.Footnote 14

Systemic discrimination can be seen in all phases of the criminal justice system: policing, courts, and corrections. The Aboriginal Justice Inquiry of Manitoba provides a definition of systemic discrimination: “The term ‘systemic’ discrimination is used where the application of a standard or criterion, or the use of a ‘standard practice,’ creates an adverse impact upon an identifiable group that is not consciously intended” (1991: 100). It should be noted, however, that this a problem that affects not only Indigenous people, but also other racialized and minority groups as demonstrated, for example, by the Commission on Systemic Racism in the Ontario Criminal Justice System (1995). That said, Indigenous people as a whole are the most adversely affected by systemic discrimination (Rudin, 2007).

Systemic discrimination in the criminal justice system is manifested in various ways and, ultimately, it contributes to the overrepresentation of Indigenous people at all stages of the system. These realities are addressed below.

Policing

Various commissions and inquiries, as noted above, have addressed the issue of policing Indigenous individuals and communities. All have identified the need for effective community policing in the Indigenous context. Hylton has written that the RCMP describes community policing as “a partnership between the community and the police in the delivery of police services” (2005: 1-2). Other institutional voices have also called for a community-based model. The Law Reform Commission, for example, recommended in 1991 that “[c]ommunity-based policing should be facilitated to the fullest extent in Aboriginal communities that wish to continue to have external police services” (1991: 46).

While community policing appears to be an effective model for Indigenous communities, communities differ among themselves with regard to a preferred approach to policing. For example, some communities want to continue being policed by the RCMP, while others would prefer (and some already have) their own police services. This suggests the need for policing relevant to “situationally-specific definitions of social regulation and control” (Depew, 1992: 462). In other words, and as recommended by all inquiries addressing the issue, policing should be community specific.

Why is policing a major concern in the Indigenous context? There are three related reasons: over-policing; under-policing; and the general absence of a community policing model in Indigenous communities.

Rudin addressed the issues of over- and under-policing in a paper prepared for the Ipperwash Inquiry (Rudin, 2007). He said the following:

Aboriginal people are both over- and under-policed. The impact of over-policing is that Aboriginal people come before the court in large numbers because Aboriginal communities or communities where Aboriginal people live are policed more aggressively than other communities…. At the same time, Aboriginal people are also under-policed. The legitimate claims of Aboriginal people that their rights, either individually or collectively, are being violated are not responded to with the same vigour as when those claims are advanced by non-Aboriginal people….. Over-policing and under-policing are different sides of the same coin. Each feeds upon the other to perpetuate systemic discrimination and negative stereotypes regarding Aboriginal people (2007, 64).

Systemic discrimination and negative stereotypes result in more Indigenous people being arrested, charged, and entering the criminal justice system. One approach to the over/under policing issue is to establish more community policing in Indigenous communities.

Hylton, quoted above, says the community policing model “is based on four principles: knowing and working with communities; identifying common problems and concerns; resolving problems through partnerships; and effective and directed enforcement” (2005: 2). Linden, Clairmont, and Murphy take a similar view with regard to policing in Indigenous communities. They say it must involve the following elements: community involvement in decisions about policing, leading to joint priority setting; decentralized management, recognizing the unique needs and approaches for individual communities; and proactive, preventative approaches to problem solving, rather than a focus only on enforcement (2001: 32).

The three elements identified by Linden, Clairmont, and Murphy are seen as essential for effective community policing in the Indigenous context. However, after applying those criteria to their research on Indigenous policing in Manitoba, Linden et al regrettably arrive at a negative assessment:

… while the police have been trying to put community policing into practice for nearly two decades, very few police forces have changed their operations to incorporate these three elements in a meaningful way. Even police agencies that have publicly committed themselves to community policing typically give the community only token involvement in determining policies and programs…. It is apparent that there is a need for “community conversations” to determine community priorities and to help determine what can realistically be expected from a police service (2001: 32).

Similarly, Clark found a general lack of commitment to community policing on the part of the RCMP – in spite of clear community requests for this model – in the three northern territories (2007). Deukmedjian (2008) found that while community policing had been the most reasonable RCMP model for Indigenous communities, RCMP Headquarters made a major policy decision after the September 2001 attacks in the United States to remove community policing as a high priority and to focus on intelligence based policing. Rudin’s comments about systemic discrimination in policing, and the findings by Linden et al, Clark, and Deukmedjian suggest that community policing is an appropriate model for Indigenous communities. Those studies also indicate that community policing is not adequately in place. Because of competing priorities and changes in policy, Indigenous communities lost out on having improved community policing implemented. This inaction signals that policing Indigenous communities remains characterized by over policing/under policing, which in turn contributes to overrepresentation. The promise community policing models hold cannot be realized without commitment.

Courts

As indicated earlier in this report, Indigenous offenders are sentenced to custody more often than non-Indigenous offenders. This is true for men and women, adults and youth in provincial and territorial correctional services. In 2016-2017, 30 percent of the total sentenced custody population were Indigenous. For Indigenous youth, the comparative numbers for secure custody and open custody were even higher at 55 percent and 60 percent, respectively (Department of Justice Canada 2018a).

Indigenous accused are also denied bail significantly more often and therefore held in remand (adults) or pre-trial detention (youth) more frequently and for longer than non-Indigenous accused. Remand numbers have increased significantly for adult Indigenous accused in the last several years (Clark, 2016b). Remand among adult Indigenous accused in 2016-2017 stood at 29 percent of the total adult remanded population. Indigenous youth in pre-trial detention represented 48 percent of the total youth pre-trial detention population (Department of Justice Canada, 2018a). In certain jurisdictions, such as Nunavut, the disparity is even greater. According to Statistics Canada (2017b), 100 percent of the adult individuals in remand in Nunavut were Indigenous in 2004/2005 and 2014/2015.Footnote 15

As well, it is noted that the median number of days adult Indigenous accused are held in remand in Nunavut increased from 3 days in 2004-2005 to 23 days in 2014-2015 (Statistics Canada, 2017b). The remand and pre-trial detention numbers remain substantially higher for Indigenous accused compared to non-Indigenous accused. Why is this so?

Rudin points out that, consistent with the Criminal Code, courts deny bail and impose remand for one or more of three reasons: (i) the person is not likely to attend court for his/her next hearing or trial; (ii) the person is considered a threat to the community or an individual; or (iii) the nature of the alleged crime is so offensive that it would shock the public if the alleged offender were released on bail (Rudin, 2007: 51). If bail is granted, it is done with certain conditions attached. A standard condition is that the accused have a surety; i.e., a person who is able and willing to make a payment to the court in the event the accused breaks their conditions or fails to appear. This is often difficult for individuals accused of a crime; however, it can be especially difficult for Indigenous accused. Indigenous people living in the city are often without family or other supports and so will not have a surety to back them. These same individuals are often abjectly poor, homeless, unemployed, and have little education. (This is consistent with the socio-economic marginalization of many Indigenous people, as suggested above.) But whether in the city or in a remote community, poverty and the inability to post bail or to have a surety who can post bail is common and typically leads to remand.

Another significant factor leading to Indigenous overrepresentation is that Indigenous accused are relatively more likely to breach their conditions, whether bail conditions or probation conditions. Typically, this works against individuals who have been before the courts previously; bail is usually denied in such cases. The issue of bail is important for several reasons, including the fact, as various experts have shown (e.g., Knazan, 2009), that “those held in custody on remand are more likely to plead guilty and be found guilty than those who are released pending trial” (Rudin, 2007: 53 citing Kellough and Wortley, 2002; Bressan and Coady, 2017).

The important issues of bail, remand, pre-trial detention, and some positive movement are discussed further in section 5.3, below.

Corrections

The extent of the overrepresentation of Indigenous people in corrections, particularly in custody, was noted earlier in this report. They face inequities on a regular basis, primarily as the result of systemic discrimination. The main source of information on federal corrections, particularly on custodial institutions, is the Office of the Correctional Investigator (OCI). OCI Annual Reports and special reports commissioned by the OCI (e.g., Mann, 2009; OCI, 2012), clearly indicate that Indigenous inmates are subject to systemic discrimination while in prison.

In his 2013-2014 Annual Report, the Correctional Investigator made the following comments which are worth repeating here:

…the factors and circumstances that bring Aboriginal people into disproportionate contact with the federal correctional system defy easy solutions. The gap in outcomes between Aboriginal and non-Aboriginal offenders is widening as the most significant indicators of correctional performance continue to trend downward. Aboriginal people under federal sentence tend to be younger, less educated, and more likely to present a history of substance abuse, addictions and mental health concerns. They are more likely to be serving a sentence for violence, stay longer in prison before first release and more likely to be kept at higher security institutions.
They are more likely to be gang-affiliated, overinvolved in use of force interventions and spend disproportionate time in segregation. Aboriginal offenders are more likely denied parole, revoked and returned to prison more often. The situation is compounded by the fact that the proportion of Aboriginal people under federal sentence is growing rapidly. (OCI, 2014: 43-44)

With regard to the federal Corrections and Conditional Release Act (S.C. 1992, c. 20), the OCI says:

The Corrections and Conditional Release Act (CCRA) makes specific reference to the unique needs and circumstances of Aboriginal Canadians in federal corrections. The Act provides for special provisions (Sections 81 and 84), which are intended to ameliorate overrepresentation of Aboriginal people in federal penitentiaries and address long-standing differential outcomes for Aboriginal offenders (2012: 3).

Section 81 of the Act provides for the opportunity for the Correctional Service of Canada (CSC) to enter into agreements with Indigenous communities for the care and custody of offenders who would otherwise be in a federal facility. Section 81 also covers healing lodges for Indigenous offenders. Section 84 permits agreements between CSC and Indigenous communities for the release of individuals to communities with conditions at the time of parole.

While Sections 81 and 84 are intended to address overrepresentation, the OCI concluded that they were not being implemented effectively. According to the OCI, “[t]he investigation found a number of barriers in CSC’s implementation of Sections 81 and 84. These barriers inadvertently perpetuate conditions that further disadvantage and/or discriminate against Indigenous offenders in federal corrections, leading to differential outcomes” (OCI, 2012: 5). More recently, the Correctional Investigator maintained that the implementation of Sections 81 and 84 still requires better application. He made the following recommendation in his 2017-2018 Annual Report (2018: 65):

I recommend that CSC re-allocate very significant resources to negotiate new funding arrangements and agreements with appropriate partners and service providers to transfer care, custody and supervision of Indigenous people from prison to the community. This would include creation of new section 81 capacity in urban areas and section 84 placements in private residences. These new arrangements should return to the original vision of the Healing Lodges and include consultation with Elders.

In light of the above and in consideration of the OCI’s assessment that Section 81 is not being effectively used to build Indigenous healing lodges, the OCI fairly concludes that (a) Indigenous offenders are experiencing systemic discrimination while in prison and at the time of their parole eligibility, and (b) that the relevant provisions of the CCRA are not being implemented as intended and it is, therefore, failing to ameliorate the overrepresentation issue.

Consistent with the findings of the OCI, the Commission on First Nations and Métis Peoples and Justice Reform earlier recommended the following:

  • access to cultural & spiritual programming (2004: 6-23)
  • more resources to assist transition from prison to community (2004: 6-24)
  • more programming to meet the needs of women in prison (2004: 6-26)
  • programs to help children whose parent is incarcerated (2004: 6-27)
  • programs to help youth reintegrate into community (2004: 6-28).

The OCI, the Commission on First Nations and Métis Peoples and Justice Reform, and the Manitoba Justice Inquiry are clear that the failure of the corrections system to acknowledge the realities and meet the needs of Indigenous offenders results in ever increasing overrepresentation. Approaches to the problem must be fair, equitable and innovative in order to see positive results.

Culture Clash

RCAP (1996) and Rudin (2007), among others, identify culture clash as a fourth factor contributing to overrepresentation. According to Rudin,

[The culture clash] theory starts from the undeniably correct thesis that Aboriginal concepts of justice and Western concepts of justice are very different. The theory then goes on to conclude that when Aboriginal people are required to fit into a system that does not recognize their values, overrepresentation occurs (2007: 22).

Many Indigenous people in many communities hold a different “worldview” from non-Indigenous people. This is a complicated point, in part because it varies by community and by culture (there is great diversity among Indigenous cultures throughout Canada). However, at the risk of generalizing excessively, it is fair to say that Indigenous worldviews are more likely to focus on rehabilitation, community reintegration, and healing than is currently the case in the Euro-Canadian justice system. The standard Canadian system has tended to focus on adversarial processes and retribution or punishment, although this has seen some positive change in recent years with the advent of specialized courts and other initiatives.

We can look at the question of differences in worldview in two ways. The first refers to different ways to manage wrong-doing. The second way is to understand that many Indigenous people, as part of a particular Indigenous culture, do even small things differently. For example, Rupert Ross, as a beginning Crown prosecutor in Kenora, Ontario, assumed that an Indigenous witness was inadvertently admitting guilt, or at least blameworthiness, by not making eye contact with the Crown during questioning at trial. But in fact, as Ross eventually learned, the act of avoiding eye contact is a sign of respect among certain Indigenous cultures and in no way expresses guilt (Ross, 1992: 4). While this might seem an innocuous example of cultural difference, one can see how it could lead to incorrect assumptions and inappropriate decisions by lawyers, judges, juries and others.

Similarly, Rudin (2007: 22) makes the point that in many Indigenous cultures, the terms “guilty” and “innocent” have nothing analogous in their languages. Rather, an Indigenous person might conflate “guilt” with “responsibility.” In other words, a person might see themselves as being responsible for a criminal act, even though it was someone else who actually committed the offence. But the court might interpret the witness’s affirmative response as a guilty plea. Clark found a similar problem when conducting research with Mi’kmaq for the Royal Commission on the Donald Marshall, Jr., Prosecution. Mi’kmaq, especially those from more remote communities, translated the judge’s question, “How do you plead: guilty or not guilty?” as “Are you being blamed?” Heard in this way, the natural response is to answer in the affirmative, which can then be interpreted by the Court to mean “guilty” (Clark, 1989: 47-48).

Culturally relevant approaches to justice are viewed as positive alternatives to the mainstream justice system. In general terms, they align more closely with Indigenous approaches in that they focus on mediation, cooperation, support and healing, rather than on adversarial confrontation, blame and punishment. Restorative (or transformative) approaches are meant to resolve the problems between an offender, on one hand, and the victim, his or her family, and the community, on the other. The offender is typically called to task by his or her community but is also supported through rehabilitation and reintegration into the community. It is the victim and the community who have been offended, not the state as currently implicit in the Criminal Code. Thus, the community has a primary role to play – working together with the offender and often the victim – in making matters right in a positive, transformative way. Ideally, the state, through the criminal justice system, would play a secondary but supportive role in the transformative process. In this light, alternatives to the mainstream system – circle sentencing, family group conferencing, Elder counselling, community and youth justice committees as examples – are, in many communities, more effective in restoring harmony than traditional mainstream approaches.

Rudin acknowledges that not all Indigenous people share the same values or understandings of justice as rooted in their cultural heritage. This may be especially true in urban settings where individuals are not as likely as those living in reserve communities or in Inuit settlements to be connected to their culture and traditional ways of settling disputes.Footnote 16 However, it is clear that culturally relevant approaches to justice, generally described under the community justice or restorative justice umbrella, appear to be effective in terms of problem solving and longer lasting remedies (see, for example, Clark, 2013; Maurutto and Hannah-Moffat).Footnote 17

There are many culturally appropriate approaches to criminal justice matters in Indigenous communities across Canada. They are not addressed in detail in this report; however, some examples are provided in section 5.5, below.

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